בס"ד

Two parents-One soul

When Hashem created children, He created them in a way that requires two parents. The child needs two parents, not just to have a physical body. He needs two parents to have healthy emotional and yiddishkeit development, just as critical. More than every person needs two eyes to see depth, a developing child needs two unique perspectives on his life.

Hashem gave the child a father with logical and intellectual capabilities and a mother with emotional and nurturing capabilities.

Through yirah, and binah –emotional fear of G-d, and emotional examination; with chochma and daas, factual and integrated  knowledge, we achieve complete wisdom.No child is complete without both sets of those ingredients. (Chatam sofer niddah 45b,tzidkas haztadik 195)

 A child is therefore expected to respect and follow both his father's mussar and his mother's Torah. (mishlei 1:8 , 6:20)

Both the father and mother are obligated to mechanech the children in good character traits. Rabienu Manoach calls it a natural obligation. There is no need to state it (gloss on Rambam hil. yom kippur 2:10). [There is a separate halachic argument as to a mother's part in the takanah derabanan of habituating children in mitzvos before  age 12/13.]

So,if a child needs both parents, why divorce?

The irony of divorce

The most basic mitzvah in marriage is the mitzvah of loving your fellow Jew. (Tosefta Sotah 5:11)  At marriage, each spouse makes an intentional decision to obligate themselves to love a specific Jew. Usually, love is fostered by bringing someone close. Ironically,love is sometimes created by distancing and giving space. In these painful cases, divorce or separation is actually an accomplishment of the same mitzvah of loving another Jew. (Tshuvos Chatam Sofer -even haezer 2 -174, Tshuvos Achiezer 1-28- at end of 16) Similarly, divorce can be a way to raise the existing and/or new children, without  tension, which would be a further fulfillment of the goal of marriage, the mitzvah of  having children. (Toeles Ralbag parshas ki Tazai #5 )

Where am i sleeping tonight?

When it comes to deciding custody arrangements, no resolution is ideal. In a utopian mindset, the 2^nd parent should move next door. Researchers have  found that children whose parents both remained close by, faired better in the aftermath of the divorce. But then again, divorces don't happen in utopia. .

The clear Torah answer, as we will see, is to do what's best for the children. In fact, in many cases, the divorce itself was a benefit for the children, by creating a calm atmosphere to grow up in. Many older children admit openly that they gained from their calmer situation.

The custody decision is dependent on no less than a myriad of factors. This article will only give the halachic background before the Dayan gets to the reality at hand.

Technicalities

Technically speaking, the Jewish family is the father's family. (Bamidbar1:2, Shmos 12:3, 21:22)(Radvaz 1:360, Darchei Noam, Even Haezer 38). It’s ultimately,his lone responsibility and privilege to raise his family in his unique style of Hashem's will. The complete halachic position of the father doesn’t end with divorce. (Tzitz Eliezer 16:44). 

Some parents want the children by them, for the parents' benefit – i.e. companionship, help in the house. That is not the Torah's value. Parents work for the children and not the opposite (Darchei Noam, Even Haezer 38).

Chazal  enacted the following basic rules – for the continued responsibility of the parents to do the best for their children. (All of the following are subject to be modified by the beis din, depending on the situation):

A) All children below age 6 are located with the mother (Eruvin 82b, Rabvaz 1:429).

B) Older Girls continue with the mother, boys over 6 with the father.

The priority of the family is Jewish values and emotional and social development. The parents are responsible to develop the child to grow into their natural gender identity. The father naturally relates best to the boys and will be more successful role modeling being a man. The father learns and works. In contrast, the mother will naturally pass on a woman's nature to her daughter, which includes tznius and childrearing. (Tshuvos – R. Migash 71, Rashba (Ramban) 38, Radvaz 1:429, Rosh 82:2).

C) If one parent will not raise the child to keep the Torah , Beis Din (where they can) will send all the children to the parent who will raise them with Torah values (Minchas Yitzchak 7:113).

Educating with love

Interestingly, the Ra'avad questions the Rambam (Ishus 21:17) why the boys stay with the mother till age 6, as the father must teach them Torah already from the time they began to talk. The answer given is that it is too painful to seperate the young child from the mother. We  educate children through love, not through pain. Arrangements can be made, through a teacher or visitations. (Mirkeves Hamishna)                                                                                                                                

The pesach seder

In General, visitation agreements dont make specials exceptions for seder night, and the seder is included with the general arrangements for yom tov. That is usually, half of the chag by one parent and half by the other. Alternatively, the whole Sukkos by one parent and the whole pesach by the other. This alternates over a two year cycle. The first  year by the father and the second year by the mother and so on.

Some wise fathers ask- why isn’t it arranged that the father has the children for the seder, as the posuk in chumash says he must tell the hagadah to his son? In contrast, however,the gemara (kiddushin 29a) doesn’t list this mitzvah as an obligation of the father to the son.

The answer given is that the mitzvah of haggadah is for each Jew to tell of yitzias mitzrayim to internalize emunah in himself. The most natural audience for the father is his young son. If he is not with his family , he fulfills his mitzvah,just the same. Nevertheless, Rav Aharon Kotler did arrange for a divorced talmid to be with his children for the seder,their first year seperate, saying that the father’s main mitzvah is with his son.(heard from R’Shmuel Wittow)

Besides that, its very important for visitation schedules to run smoothly. Therefore we look at the full picture of the whole yom tov.

Time sharing or joint physical Custody

In western countries today, there is a new trend, to arrange joint physical custody of the child. That means that the child actually lives in two homes on a regular basis, i.e. one week in one home and one week in the other home.

The benefit of this system is that the child is given much quality at home time with both parents and gets regularly timed attention from both parents. The counter argument is that getting equal attention is only beneficial if the child can absorb it at all. But a child who is moving his home weekly is too unsettled to make a connection with anyplace or anyone. Moving homes so often further bangs nails of confusion into any already confused and traumatized child. This is not my place to add more fuel to this fire.

There is a Jewish angle that needs to be examined as well.

Joint custody is an outgrowth of the values of a pluralistic society that ascribes to the principal that all men and women were created equal. It follows,therefore  that fathers and mothers are also equal and the child needs equal time by each.

Jewish values teach us, all men and women were created equivalent, rather than equal. Each have their individual part of G-dliness that no one else can have. They are individually responsible to use these gifts that only they have. Men have their part of G-dliness and women have their part . Only the combination of the two make up a whole picture of G-d's qualities. [Science as well has finally proven that the genders are neurologically,emotionally  and biologically different.]

The cardinal rule of Jewish parenting is "Train a child according to his way" (Mishlei 22:6). Therefore, healthy parenting requires training a boy to be a man and a girl to be a woman. Raising a child to be a universal gender is not “his/her” way or any other specific way. It's just "be like everybody", which the child realises to mean- "be like nobody". That is disrespect of the child’s identity, a recipe for low self-esteem and plenty of other problems.(i.e. societal gender confusion).

The Torah sources above spilled much ink over the significance of proper gender development, because that builds children through respecting who they truly are and  building who they will be.